Free Trade Area of the Americas (FTAA) Agreement

What are free trade agreements (FTA's)?FTA's are international agreements made between two or more nations that relate to common trade or service issues. International copyright law is often implicated in provisions of these agreements. Copyright provisions, incorporated into the proposed draft for the multi-lateral FTAA, and into bi-lateral agreements made with Jordan, Chile and Singapore, ensure the implementation of the TRIPS agreement as modeled by the U.S. in the DMCA. (The World Trade Organization acronym for "trade related aspects of intellectual property rights" is TRIPS [See Related link] a comprehensive multilateral agreement on intellectual property that became effective in 1995.) The draft terms provide mechanisms to protect new technological methods of communication and ensure that the protection will keep pace with future technological advancements.

What is the FTAAThe U.S., Canada and Mexico are signatories of the North American Free Trade Agreement (NAFTA). Under NAFTA the U.S. is obligated to expand the agreement to the entire Western Hemisphere. In the FTAA negotiations, 34 nations of North, South and Central America are negotiating a comprehensive regional trade agreement for the Americas similar to NAFTA. The FTAA includes a chapter on intellectual property rights and on trade in services. The negotiating governments released a first consolidated draft of the FTAA in July 2001 and then in November 2002. ALA has submitted two sets of comments regarding the chapter on intellectual property rights.

Many of the provisions of the 2002 text, including virtually all those most important to libraries, are considered tentative provisions in the draft and must still be approved by participating treaty nations. A third draft is expected in Fall 2003.

The USTR, which negotiates for the U.S., requested public comment on the drafts in early 2003. The library associations submitted comments in January and February 2003.

How is ALA involved?

In its comments to the USTR, libraries have identified five main issues of concern in the various FTAA drafts.

One draft provision extends copyright protection to the facts collected in databases. Under a well-settled principle in U. S. copyright law, such facts themselves are not copyrightable. Currently, international and U.S. standards do not allow for database protection unless the specific arrangement of the facts is unique enough to warrant protection but even then the copyright extends only to the arrangement and not to the facts themselves. ALA is opposed to copyright protection of facts regardless of whether they are contained in databases. Such copyright protection runs counter to the concept of "originality" required by copyright law and would severely restrict the user-community.

Unlike other international agreements, the FTAA draft provides a specific list of items that are not copyrightable. ALA is concerned that the list currently leaves out many important categories of information.

ALA opposes language in certain draft provisions that would restrict copying beyond current international requirements and essentially beyond the requirements of the U.S. Digital Millennium Copyright Act. ALA contends that the TRIPS Agreement allows each sovereign nation to determine its own policies regarding protection and enforcement of copyright.

FTAA draft language regarding the term of protection afforded to copyright holders is also problematic. The duration of copyright protection has been a controversial aspect of U.S. law. In 1998 the Copyright Term Extension Act (CTEA) extended the copyright term of protection to life of the author plus 70 years unlike the existing international Berne-TRIPS standard of life of the author plus 50 years. ALA and the other major library associations have opposed the extension of copyright terms, preferring that copyrighted material be permitted to fall into the public domain sooner rather than later, thus allowing the free use of the work for research and innovation.

The current FTAA draft provides both the U.S. and the international standards as competing options. The library associations have urged the USTR to adopt the international standard and leave any extension of the copyright terms to national discretion.
ALA takes issue with the current draft definitions of "fair use" and "personal use" which are incompatible with existing law. The draft definition of fair use reads, "[use that does not interfere with the normal exploitation of the work or [unreasonably] [unjustifiably] prejudice the legitimate interests of the author [or the right holder;]."* This definition is narrower than the definition of fair use in Section 107 of the U.S. Copyright Act. Fair use is a balancing mechanism that provides rights for users within the framework of the limited monopoly offered to copyright holders. Libraries rely on this broad interpretation of fair use to reproduce materials for educational, preservation and other non-commercial purposes.
ALA has also questioned the term and definition of "personal use." This definition reads, "[reproduction or other use of the work of another person in a single copy, exclusively for an individual's own purposes, in cases such as research and personal entertainment.]" This definition seems to be more in line with the U.S. fair use doctrine although it is narrower and therefore cannot be used as an interchangeable term. Libraries contend that the inclusion of this term will serve as a source of confusion rather than clarification.

What is the status and what are the implications of the FTAA?The libraries' comments to the US Trade Representative mainly address the part of the draft agreement dealing with intellectual property, particularly copyright. The entire draft of the treaty is considerably broader, however, addressing five key areas of negotiation: consumer and industrial goods, agriculture, services, investment, and government procurement. The 34 governments involved in negotiations have committed to conclude the FTAA by January 2005.

The US Trade Representative granted ALA's request to participate in a Joint Government-Private Sector Committee of Experts on Electronic Commerce ("Joint E-Commerce Committee"). This Committee advises the negotiators of the treaty and will focus on the digital divide, consumer protection, and e-government.

The recent FTA's and bilateral agreements are only part of a larger agenda being pursued by the USTR. In a "2003 Special 301 Report" issued May 1, 2003, the US Trade Representative announced that his office would devote special attention to implementing TRIPS standards and to increasing protection from counterfeiting and piracy throughout the world. The USTR expressed satisfaction with the progress made on the FTAA and the recent trade agreements with Jordan, Chile and Singapore and hoped this success would pave the way for similar negotiations with Central America, Morocco, Australia and the Southern Africa Customs Union.

The report also addressed specific concerns with respect to the intellectual property protection of the following trading partners: Brazil, Bolivia, Peru, Ecuador, Venezuela, the Dominican Republic, Pakistan, Thailand, Ukraine and Turkey. The report singled out Ukraine as persistently refusing to adopt what the USTR considers adequate and effective protection against optical media piracy (including CDs, VCDs, DVDs, and CD-ROMs) and stated that future discussions would focus on gaining the Ukraine's cooperation in 2004. Additionally, the USTR will continue to work with WTO Members and expects further progress to complete TRIPS implementation worldwide in a manner favorable to the U.S.